The Indian Child Welfare Act: Why It Remains Crucial 43 Years On

August 24, 2021

By Deepti Govind

In the late 1960s, a New York-based attorney named Bertram Hirsch was sent to North Dakota to assist with a custody dispute case on behalf of the Spirit Lake Tribe. At that point, Hirsch was employed by the Association on American Indian Affairs (AAIA). He arrived at Devils Lake in 1967, originally under the impression that he was helping out in just one individual case: that of a Native grandmother who had lost custody of her six-year-old grandson. The grandmother had not been accused of abuse or neglect. Hirsch told Vox the only allegation against the grandmother was that “she was too old,” at 62 years to take care of her grandson. Hirsch and the Spirit Lake Tribe successfully fought that case, but it proved to be just the beginning of a longer saga.

The AAIA and Hirsch began to wonder how many other families may be going through something similar, and so began researching; first in North Dakota and then across the United States. The AAIA completed two studies on the subject, in 1969 and 1974, and unearthed some alarming statistics. They found that 25–35% of all Indian children had been separated from their families and placed in foster homes, adoptive homes, or institutions, a large number of whom even had living, able, and willing relatives to take them in. Of those placements, an overwhelming 90% were in non-Native (or non-Indian) homes. Thus, the Indian Child Welfare Act (ICWA) was enacted in 1978.

Another important historic fact that must be recalled at this point is America’s boarding schools for Indigenous children, a system that was very much active well into the 1960s. In June, Secretary Deb Haaland had announced that the Department of Interior (DOI), under the supervision of the Assistant Secretary for Indian Affairs, will conduct a thorough analysis of the records it kept between 1819 and 1969 relating to the residential school system, focusing, in particular, on cemeteries and potential burial sites.

Over the 150-plus-year lifespan of the residential school system, the DOI says that hundreds of thousands of children were taken from their families, though the exact numbers remain unclear. According to some estimates, by 1900, there were around 20,000 Indigenous children in boarding schools. A quarter of a century later, that number had virtually tripled, to around 60,000, with around roughly 83% of Indian school-age children attending boarding schools by 1926.

The ICWA, however, has also received its share of criticism, including from adoption advocates, and there have been several attempts to dismantle it in court. Why exactly was the ICWA created, why have some tried to get it repealed, and why is it still an all-crucial piece of legislation that protects not just the Native American way of life but also the sovereignty of tribes? We attempt to answer those questions in this piece.

Why The ICWA Was Passed

“For Native Americans, the fate of their continued existence as discrete cultures is inextricably intertwined with the future of their children and the viability of their extended family, clan, and tribal networks,” the National Criminal Justice Reference Service (NCJRS), whose content and services have since been moved to the Office of Justice Programs (OJP) website, said in a model guide on the ICWA, as part of a cultural and legal education program. As we mentioned earlier, in the late 1960s, research revealed that there was widespread unwarranted removal of Indian children from their homes.

Research by groups like the AAIA aside, Congressional studies and hearings were also conducted into the matter. Those found that failure to recognize tribal sovereignty, ignorance of Indian culture and child-rearing traditions, and the cultural biases of state court judges, attorneys, and social service personnel were directly responsible for the high removal rates of Indian children from their families and tribes. In fact, before Congress enacted ICWA, “some tribes faced certain extinction because non-Indian judges, attorneys; and social service personnel did not understand — and in many cases refused to recognize or give legal standing to — traditional Indian child-rearing roles and practices,” the NCJRS model guide says.

The ICWA was passed to address the “wholesale separation of Indian children from their families,” the Bureau of Indian Affairs (BIA) said in its FAQ on the Final Rule about the ICWA in 2016. The 2016 rule was passed to implement the original ICWA by incorporating child welfare best practices and to promote uniformity in State ICWA proceedings, while still considering the unique circumstances of each child. Congress recognized that it is in the best interest of the child to maintain tribal connections and that children are vital to tribes’ continued existence.

What Does The ICWA Do?

The ICWA governs state child custody proceedings in various ways. According to the Final Rule of 2016, some of them include:

  • By recognizing Tribal jurisdiction over decisions for their Indian children
  • By establishing minimum federal standards for the removal of Indian children from their families
  • By establishing preferences for placement of Indian children with extended family or other Tribal families
  • By instituting protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary

It’s important to note that the ICWA does not prevent adoption of an Indian child to a non-Indian family. It provides procedures “for identifying an Indian child early on and involving the child’s Tribal nation in the process to ensure that everything has been done to keep the Indian family whole, and cultural connections intact,” the AAIA explains. Studies have shown that Indigenous children adopted to non-Indigenous families fair worse psychologically than white peers, and have higher rates of suicide, depression, and alcoholism, the AAIA continues. Involving the Tribal nation in the placement or adoption is crucial to provide culturally appropriate services to support the child and family.

“ICWA requires that: the state must inquire into the enrollment status of a Tribal child, provide Tribes and parents notice in child welfare proceedings, and ensure that Tribes are given the opportunity to intervene in the proceedings or transfer jurisdiction to the Tribal court. The party removing a child or terminating parental rights must provide active efforts to prevent the breakup of an Indian family and present testimony of a qualified expert witness supporting such a decision before placing an Indian child in foster care or terminating the parental rights over an Indian child,” AAIA says.

Challenges To The ICWA’s Constituionality

Per the AAIA, the ICWA is constantly being litigated, with state courts of appeal interpreting the law across the country at a rate of once every other day. Many tribes do not have the capacity to take on these matters, it adds. Much of the disagreement with ICWA stems from the fact that the law has not been understood well, according to many of its proponents. There’s still no data reporting requirements in place for the ICWA, and its compliance has been viewed as optional, some say. On the other hand, some adoption advocates and non-Indigenous foster and adoptive parents believe that it delays, or sometimes even derails, well-intentioned adoptions that they say could be in the best interest of the child involved.

The most recent, and well-known, attempt to repeal the constitutionality of the ICWA came in 2017. A 10-month-old Navajo and Cherokee boy was placed in the home of a white, evangelical couple in Fort Worth, Texas in 2016. He had been taken from his Navajo mother who left the reservation and was living in Texas as a result of her drug use. The foster couple, Jennifer and Chad Brackeen, wanted to adopt the boy but were hampered in their plans when, under the ICWA’s provisions, the Navajo tribe found a Native family unrelated to the boy to take him in.

That led to a lawsuit: Brackeen v. Bernhardt, which pit Texas, Indiana, Louisiana, and a coalition of conservative legal groups against the federal government, hundreds of Tribal nations, 21 states’ attorneys general, Native American civil rights groups, and child welfare organizations, a Pew Trusts article from 2019 said. The plaintiffs, who included several families interested in adopting Indigenous children and a non-Native biological parent who wanted her American Indian child to be adopted by a non-Native family, argued that the law is race-based and violates the Equal Protection Clause of the U.S. Constitution.

The Brackeens have since been allowed to formally adopt the boy after the plans to send him to another tribe fell through. But, on Aug. 9, 2019 the Fifth Circuit Court of Appeals upheld the constitutionality of the ICWA, overturning a 2018 decision issued by the Northern District Court of Texas in Brackeen v. Bernhardt. The district court had ruled that the ICWA and the related 2016 Final Rule were unconstitutional based on a conclusion that ICWA’s definition of “Indian Child” was a race-based classification subject to strict scrutiny review. 

Tribal nations and other defendants in the case countered that “Indian” is a political, rather than a racial, designation — a classification that the Supreme Court agreed with. In the 1974 case, Morton v. Mancari, the Supreme Court declared an employment preference for Indians in the Federal Bureau of Indian Affairs to be “political rather than racial in nature.” The Fifth Circuit Court of Appeals agreed and held that the definition of an “Indian Child” is a political classification.

But some say that the Fifth Circuit also chipped away at key provisions of the law, and that it could very well be reviewed by the Supreme Court.

Why The ICWA Still Matters To Indigenous People

Even today, nationwide, American Indian and Alaska Native children are placed into foster care at a rate 2.7 times greater than their proportion of the general population, the AAIA says. But this disproportionate representation is not happening because there are higher reports of abuse or neglect in American Indian communities. Those numbers are consistent, in fact, with other populations, the AAIA adds.

Then there is the fact that the ICWA was partially passed in response to the trauma of the family separation policy that saw tens of thousands of Indigenous children being taken away from their homes to boarding schools, as we mentioned earlier. Much of that “inter-generational impact” has not yet been fully assessed even, and is the reason behind Secretary Haaland announcing the “comprehensive review” of the residential school system. The system’s aim was to assimilate Indigenous children into white, Christian society, and dissuade them from practicing their traditions, languages, rituals, and cultures, which were seen as “barbaric” and “uncivilized.” 

Under the system, parents were not allowed to visit their children at these schools, Secretary Haaland detailed in June. Many students have reported suffering prolonged abuse and injury, and countless more were buried in unmarked graves when they died. Sometimes families were not even informed of a child’s passing and did not receive their remains. They were left without answers or closure, as they did not know their child’s final resting place, nor could they perform the rituals necessary in their belief system to bring closure and peace to the deceased.

There’s also limited understanding, even today, of the way the Native American family system works among the non-Indigenous communities. For instance, Indigenous communities place a lot of importance on the role an extended family plays in the upbringing of children. The term “grandmother,” as another example, is used to refer to not just older women who are actually related to a child by the typical definition of the term, but could be used to describe any elder female family member, and even some who may not be related to the child at all.

Proponents of the ICWA fear that overturning, or even diluting, it could end up putting more Indigenous children in foster care and, in turn, lead to many more being adopted out of their Native communities. Then there’s the fact that when it comes to Indigenous people, it is not a question of race, like we mentioned earlier too, but a matter of politics and of the United States’ obligation to protect Tribal nations.

As several Native American tribes responding to the Fifth Circuit verdict put it: “As we review the latest decision from the Fifth Circuit, our tribes remain committed to fighting for the Indian Child Welfare Act and ensuring that all of its provisions are upheld. While the decision is long, we are pleased to see the Court upheld important aspects of ICWA. We appreciate the law’s overwhelming support across the political spectrum and will consider all of our options to ensure we never go back to the days when Indian children were ripped away from their families and stripped of their heritage. It is deeply troubling that the attacks on this critical law continue, but we are prepared to continue our work to defend ICWA.”